[2020] KEHC 4362 (KLR)
The High Court found that the default sentence of 12 months imprisonment imposed on Bernard Miano for failure to pay a fine of Kshs.50,000 was unlawful, as Section 28(2) of the Penal Code limits default sentences for such fines to a maximum of six months. The court exercised its revisionary jurisdiction to set aside...
Source-derived case information.
- Citation
- [2020] KEHC 4362 (KLR)
- Parties
- Applicant: Bernard Miano; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 117 of 2020
- Procedural Posture
- Criminal Revision / Order in Revision
- Outcome
- Default sentence revised; substituted with four months imprisonment in default of fine.
- Legal Topics
- Sentencing Principles, Default Sentences, Forest Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bernard Miano
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Order in Revision
Legal Issues
- 1 Whether the default sentence imposed for non-payment of fine exceeded the lawful maximum under the Penal Code.
- 2 Whether the sentence should be revised to comply with statutory limits.
Ratio Decidendi
The High Court found that the default sentence of 12 months imprisonment imposed on Bernard Miano for failure to pay a fine of Kshs.50,000 was unlawful, as Section 28(2) of the Penal Code limits default sentences for such fines to a maximum of six months. The court exercised its revisionary jurisdiction to set aside the unlawful sentence and substituted it with a lawful default sentence of four months imprisonment, also considering the need to decongest prisons during the COVID-19 pandemic. The revision was limited strictly to the default sentence, leaving the conviction and fine intact.
Court Disposition
Default sentence revised; substituted with four months imprisonment in default of fine.
Orders
- The default sentence of 12 months imprisonment is set aside.
- A default sentence of four months imprisonment is substituted in its place.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NANYUKI
CRIMINAL REVISION NO.117 OF 2020
(From Original Conviction and Sentence in Nanyuki Criminal Case No.415 of 2020)
BERNARD MIANO............................APPLICANT
VERSUS
REPUBLIC.....................................RESPONDENT
14/07/2020
Coram: Before Waweru, J
(In chambers)
ORDER IN REVISION
1. Upon application by the convict herein BERNARD MIANO, I have called for and examined the record of the trial court in respect to the sentence meted out.
2. The convict was convicted upon his own plea of making charcoal in a state forest S/C 67(1)(e) of the Forest Conservation and Management Act, No.34 of 2016. On 11/05/2020 he was sentenced to a fine of Kshs.50,000/00 and in default of payment to serve 12 months imprisonment. He did not pay the fine and is serving the default sentence.
3. The default sentence is clearly unlawful. A fine not exceeding Kshs.50,000/00 should not attract a default sentence that exceeds six (6) months imprisonment. See Section 28(2) of the Penal Code.
4. In the circumstances I must set aside the default sentence, which I hereby do. Further, with a view to decongesting prisons during the current Coronavirus (COVID-19) crisis, I will substitute a default sentence of four (4) months imprisonment. To that limited extent only is the sentence interfered with. It is so ordered.
GIVEN under my hand and seal of this Honourable Court this 14th day of July 2020
H.P.G. WAWERU
JUDGE.
ISSUED AT NANYUKI THIS 14TH DAY OF JULY 2020.
DEPUTY REGISTRAR
NANYUKI HIGH COURT